JO & Ors v Secretary of State for the Home Department

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires an immigration decision-maker to be properly informed about every affected child and then to examine all relevant information carefully. Those steps are necessary before identifying the child’s best interests and balancing them against other considerations under article 8.

Compliance is intensely fact-sensitive. A reviewing tribunal will commonly assess the application materials and the decision letter. A formulaic assertion that section 55 was considered will not suffice where the decision does not engage with material evidence, the children’s circumstances or the statutory guidance.

The appellants were a Nigerian mother and her three children, all born in the United Kingdom. The Secretary of State refused their applications for leave to remain and decided to remove them. Their case relied on article 8 and, for the eldest child, paragraph EX.1 of Appendix FM to the Immigration Rules.

The First-tier Tribunal dismissed the appeals in a determination promulgated on 10 March 2014. Permission to appeal was granted on the basis of an arguable error of law in its article 8 assessment. The central issues were whether the Secretary of State had complied with section 55 and whether the First-tier Tribunal had addressed the eldest child’s potential entitlement under paragraph EX.1.

1. Appeal allowed. The First-tier Tribunal had made material errors of law. Its decision was set aside and the Upper Tribunal re-made the decision by allowing the appellants’ appeal because the Secretary of State’s decision was not in accordance with the law.

2. Section 55 imposes inter-related duties. The decision-maker must be properly informed of the position of each affected child and must then conduct a careful examination of all relevant information and factors. These are essential preconditions to identifying the children’s best interests and balancing them with other material considerations under article 8.

3. The decision letter did not discharge those duties. It did not engage with the substantial material supplied about the family, referred effectively to only one child, made unsupported assumptions about support in Nigeria, and gave no indication that the statutory guidance had been considered. It also improperly conflated the children’s interests with adverse matters concerning their mother’s immigration history.

4. The adequacy of section 55 compliance is intensely contextual. In ordinary litigation, the application materials and decision letter must be examined scrupulously to determine whether the substance of the statutory duty was performed.

5. The First-tier Tribunal also failed to consider the eldest child’s potential case under paragraph EX.1 of Appendix FM, including whether it would be reasonable to expect that child to leave the United Kingdom. That omission was material. The Secretary of State must re-make the decisions in accordance with this judgment.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, and re-made the decision.
• First-tier Tribunal: dismissed the appellants’ appeals in a determination promulgated on 10 March 2014.